Between temptation and rape (column 8)

With God’s help

Today I saw that my niece Talita is participating in the "Free Consent" operation in the north of the country, within the framework of which a campaign is being conducted that tries to clarify that a woman or girl's consent to sexual relations or any kind of contact must be given explicitly and that implicit or indirect consent is not enough. Among the campaign's slogans: "Hesitation is not," "Silence is not "Yes, this is a sexy dress." not "Yes," etc. As a result, a discussion arose in our family about this matter, and I thought that there were several fundamental aspects to it that were worth clarifying in more detail.

I will make it clear at the beginning of my remarks that even when there is explicit consent, I am not a fan of sexual freedom, and not just for halachic reasons. And yet this discussion extends far beyond the question of sexual freedom and is worth a read.

On nonverbal communication and permissiveness

There are many forms of communication between people, far beyond verbal communication. A person's desires can be understood in many ways, through body language, through various forms of communication, and more. This is especially true in the case of sex, which is not always explicitly stated, and like relationships between people in general, it is also based on a great deal of body language and mutual feelings. I think there are quite a few women and girls whose hesitation or silence is actually interpreted as "yes," and that is also their intention. While it can be suggested that it is still better to adopt a strict approach in order not to fall into misinterpretation, it is simply not true that hesitation or silence always means "no." notThis is nonsense. In many cases they mean yes Implicit. Even if this suggestion for a stricter interpretation is correct and appropriate, it is still difficult to accept the automatic accusation against someone who did not take it and interpreted the partner's approach differently. In many cases, he is right.

Sexual permissiveness has led society to treat the sexual act in a cheap and easy way. Almost every movie contains sex scenes as a standard. And now we are all surprised that people are so easy-going about having sex. That they don't make a big deal out of it. Such relationships are no longer the taboo they once were, so it's no wonder that people do things without prior in-depth consideration and without using sophisticated interpretive methods regarding their partners. What are you making a big deal out of such a banal thing?!

Furthermore, the feeling is that in many cases there is genuine consent on the part of the couple, but the indirect and implicit way allows one party to back down in retrospect and even accuse the other of assault or rape. This is an opening for manipulation and emotional abuse, sometimes precisely from the "weaker" side. Therefore, it is not unreasonable in my opinion to demand a clear denial from the woman and not to be satisfied with platitudes that state that hesitation means notIt is true that sometimes it is difficult for a woman to say this explicitly, and as is well known, sometimes when she is attacked she is paralyzed and cannot respond, but it is equally difficult for a man, and even more so for a boy, to avoid the necessary interpretation of implied terms on her part. At most, it can be said that the demand for clarity should be directed to both sides.

The Haredi solution

In a more conservative society, where sex is an act that occurs after the relationship is established, the problem hardly arises (rape and assault, of course, exist in such societies as well, but the double meaning and ambiguity are almost nonexistent there). Haredi society solves the problem with a complete separation between the sexes, and my feeling is that permissive society is returning to those realms without admitting it. Anti-permissive terrorism is being carried out to keep permissiveness intact, and of course people are amazed when they fail again and again. Permissiveness places teenagers (and adults) in an impossible situation, and demands that they behave like philosophers with sophisticated interpretive tools when the hormones are flowing through their maturing bodies at full force.

I can't help but recall the incessant mockery of my secular friends, so prevalent some thirty years ago, of the dark religious who object to a nice pinch on the buttocks of a girl passing by on the street, or whistles expressing sincere, heartfelt appreciation for her obvious intellectual qualities. Not to mention hanging pictures displaying these qualities on the walls for all to see. And now, today we have arrived at hysterical rules of proper integration in the army that are a direct result of this permissiveness, and campaigns that try to stop the all-too-natural products of the permissive approach. So the Haredim are still somewhat right, but of course no one will admit it.[1]

Between temptation and rape

But all of this is just a preliminary discussion. Beyond all of this, I think that a distinction should be made between the claims about silence or hesitation, and the claims about provocative clothing. The accepted assumption among the leaders of these campaigns is that a woman or girl is allowed to dress however she wants, and that this is her private matter. One way or another of her clothing does not allow anyone to harm her against her will. In principle, I tend to agree with this view, except for the question of the sexual message conveyed through clothing (which sometimes constitutes implicit consent, which I discussed above). But another question arises here, and that is to what extent temptation, even if there is no consent, is a contributory factor to the rape that follows.

These campaigners are shocked every time they raise this claim, but it doesn't stop them from raising it in other contexts. When Jews go up to the Temple Mount and want to pray there, it is only legitimate for the Arabs there to riot, use weapons, stab and murder them. Yehuda Glick (a remarkably moderate man, in my opinion, who is undergoing a terrible and apparently baseless media and political delegitimization) who has now entered the Knesset in place of the resigning Bogy Ya'alon, is perceived by the public as a mega-terrorist who is wreaking havoc on the Temple Mount. Simply a walking terrorist attack. For some reason, they forget that the disturbances and violence there are only caused by the Arabs. The Jews who go up to the Mount want to pray there, and the lovers of peace, tolerance and brotherhood of peoples (and of course freedom of worship) do not allow them to do that. When this claim is raised (very rarely, of course), they explain with good taste that the feelings of the Arabs must be taken into account, and that they should be understood to be rightly outraged, since their feelings were hurt by the provocation of the people who climbed the mountain. In my opinion, this is just one expression of the arrogance and racism of the left, which treats the Arabs as a kind of uncontrollable animal, from whom it is impossible to demand what is demanded of the Jews and ordinary people who are responsible for their actions and control their feelings.

If Jews want to march in Umm al-Fahm, the police will of course try to prevent them from doing so. After all, this is a provocation that could lead to violence for which the victims will be to blame (after all, the native animals around them cannot be required to control their justified anger).

So who is to blame for the Arabs stabbing and running amok? It's clear, Yehuda Glick is the provocateur who goes up to the Temple Mount and causes this unrest. The victim is to blame, because he brought this upon himself through his actions. How is this different from a girl who wears provocative clothing and brings the boys around her into a hormonal storm, which sometimes erupts in the form of sexual violence following an insufficiently thorough interpretation of consent or disagreement on her part? Why is the one who is to blame there the aggressor (the rapist) and here the one who is to blame is the victim (the temptress)?

Wait, what about you?

Of course, the other side of the same question can be directed at the religious-conservative-right-wingers (like me). On the one hand, you blame the Arabs and not the provocateurs who go up to the mountain, and at the same time you blame the girls who wear provocative clothing and not the person who attacks them. Decide, should you blame the provocateur who fell victim to violence or the person who attacked him?

It seems that both sides in this debate (right and left?) are failing at inconsistency. So who is right? Why aren't both sides acting consistently here? Where is the sane voice here?

Distinguishing between two levels

I think that in all these issues it is important to distinguish between two levels. When examining a specific case of violence, it is clear that the aggressor should be blamed (unless they seized an irresistible impulse. But this is not usually the case). Provocation, if there is one, is at most a consideration for mitigating the punishment, but it is clear that it does not remove the blame from the aggressor. This is with regard to a specific attack on a specific person. On the other hand, when there is a social phenomenon that repeats itself on a large scale, then it is not a problem of this or that person. In such a situation, society needs to examine itself. In addition to punishing the perpetrator, it must also ask itself how to prevent the situations that are prone to such violent outbreaks. If the phenomenon is widespread, then it is not a response by a non-normative person that requires local treatment of the violent factor. In widespread phenomena, normative people are also involved. But if a normative person reacts this way under the circumstances that prevail in our society, then we also need to address the circumstances that create this reaction, and not just the violent person himself.

Contrary to the Pavlovian response of various women's organizations, the argument against revealing and provocative clothing is a correct one, and it does not at all contradict the accusation of the aggressor. It is true that one way or another of dressing does not justify violence, and it is true that if there is violence it is very important to deal with the person who perpetrates it, but it is impossible to ignore the fact that clothing is part of what brings it about. Therefore, in such cases, violence must be dealt with and the person who perpetrates it must be punished, but at the same time, one must also try to neutralize the circumstances that gave rise to this violence.

These women's organizations and campaigns insist on addressing only one side of the equation, the violent men. Every time an allegation is made about provocation, it is rejected with the argument that such an allegation removes the blame from the aggressor. "My clothing is my personal matter and it does not authorize anyone to attack me," they say. It is true that no clothing authorizes attacking anyone, but the act is certainly part of what invites the attack. You have a contributing factor, and you should be aware of it. You cannot demand the full price necessary to solve the problem from others, without being willing to bear some of it yourself.

There is also a statistical issue here. Let's say that some provocation causes a violent reaction with a small chance, say 1/1000. So if it is a single person, there is no point in treating the situation itself, since the chance of violence is small, and if it does occur, the violent person must be treated. He acted in a non-normative manner. But if the provocation operates in society as a whole, we are talking about millions of people, and here the chance of 1/1000 leads to the almost certain occurrence of quite a few cases. Is it still correct to treat only the aggressors in such a case? After all, unlike individual people, a normative society is made up of many types of people. And in a completely normative way, a certain part of them reacts to such provocations with violence. Therefore, by the very fact that this is a situation that concerns many people, the non-normative response essentially becomes normative. And as such, it requires treatment on both sides of the equation.

The same women's organizations repeatedly advertise how broad and all-encompassing the phenomenon is, and how it does not depend on the type of person, society, socio-economic status, origin, etc. But if all of this is true, the obvious conclusion is that these are normative people and not deviants. In such a case, both sides of the coin should be addressed and not focused on just one of them.

So who is right?

The conclusion is that, at least in cases of widespread violence, there are usually two sides to the coin: the rapist and the tempter (who, contrary to what is accepted in halakhic terminology, here stand on opposite sides of the fence). The rapist (the aggressor) should bear the punishment, but the price required to prevent these acts should also be imposed on the tempter (the provocateur).

The difficult question is who is right, and to what extent should we place blame, and at what cost, on the seducer or the rapist? Three initial criteria can be proposed here for situations in which we do not place blame on the seducer:

1. In our opinion, he has the right to act as he does. For example, a person whose very existence constitutes a provocation to another person does not have to bear the cost of preventing the violence that the other person inflicts upon him. For example, someone who thinks that it is a basic human right to go up to the Temple Mount to pray will not agree to impose a part of the cost of preventing violence on the Jews who go up to the Mount. Similarly, someone who thinks that it is a woman's right to dress as she wishes will not agree that she should bear part of the cost necessary to prevent violence. Someone who thinks that it is the right of the women of the Western Wall to put on tefillin and read the Torah as they wish will not agree to legitimize Haredi violence against them. He will not accept the claim that their actions constitute a provocation that invites Haredi violence. Someone who thinks that it is the right of homosexuals to march in pride parades will not demand a price from them in order to prevent violence against them. But what about those who don't recognize the right of homosexuals to march proudly everywhere? And those who don't think that the women of the Western Wall have the right to wear tefillin? Or those who think that a Jew has no right to go up to the Temple Mount to pray? These, of course, will put a price on the seducer and less on the rape.

2. Sometimes it seems that there is a provocation, a pretext that comes to justify violence. The person (=rape) is not really hurt, but he claims to be hurt because he wants to use violence against the other party (=seducer). Here too, it is reasonable not to acknowledge that there was a provocation that brought about this violence, and to place the price on the rape and not to demand a price from the seductress.

3. When the price demanded from the seducer is high relative to the price demanded from the violent party. For example, if a person walks completely naked on the street, it is reasonable not to say that he has the right to walk as he pleases and only those who harm him will be accused of violence. We will prevent him from walking on the street in a way that harms a large part of the public. Why? Because the harm to the public is substantial, and the harm to him is relatively negligible.

These criteria are two-sided. That is, in the opposite cases, we will definitely blame the provocateur (the temptress), and perhaps less so the one who acts against him (the rapist).

Nozick's Seduction Paradox

This reminds me of the paradox of the American philosopher Robert Nozick. Nozick asked why the law prohibits extortion and permits seduction? When I tell someone: "If you do X, I will give you 100 NIS" - this is of course a completely legitimate statement. A kind of deal. But if I tell him "If you don't do X, I will take 100 NIS" - this is prohibited extortion. What is the difference? After all, in both cases I create a balance with a difference of 100 NIS in favor of the party I am interested in. So why is one prohibited and the other permitted?

The answer is that if I take 100 NIS from him, I have violated a right he has. On the other hand, if I do not pay him 100 NIS, this is my right, and there is no violation of any right he has. What is the difference between these two cases? There is a level 0 in relation to which we define whether I take from him or just do not give him. The property he now has is level 0. This is the totality of the rights that each party has. If I threaten to take something from him – this is forbidden blackmail. On the other hand, if I offer to add something more to him – this is permitted temptation.

In our issue (rape and seduction) there is also a level 0, which is the rights that each side has in the argument. If the demand from him violates his rights, it is not legitimate. In such a case, we would prefer to punish the aggressor and leave the rights of the victim intact. But if punishing the aggressor is a violation of his own rights, then we will not hesitate to demand a price from the victim as well. The arguments are, of course, about the rights of each side (does a woman have the right to dress as she wants, do Jews have the right to pray on the Temple Mount or march in Umm al-Fahm, do the women of the Western Wall have the right to wear tefillin at the Western Wall, etc.).

Summary and conclusions

The implication of this is that the decision as to when to divide the price between rape and seduction, and how to properly make this division, depends on quite a few basic assumptions, some of which are implicit and most of which are not simple. The question is to what extent each side's actions are legitimate, how authentic the harm is, and what the significance of the prices imposed on each side is. All of these are questions that are subject to differences of opinion and quite subjective assessments.

To see this, think for a moment about the case that was published a few days ago (see here andhere) that took place at the Faculty of Law at the Hebrew University. At a graduation party for students, several girls who wanted to dance behind a partition were not allowed to do so. There, in the heart of the bastion of tolerant liberalism, a vote was held that yielded a majority against this "terrible provocation." This violent liberal terror was, of course, met with countless learned and elaborate justifications (and idiotic and baseless, of course), and what's worse, it also received a majority among the voters. It's horrifying to think that these scumbags are responsible for the rule of law and values in our society. What's the problem? One could easily argue that the dancers behind the partition are actually forcing the public not to see them. What right do they have to prevent us peaceful academics from watching their bouncing intellectual antics?[2] If this argument, which combines extreme wickedness and lack of intelligence, sounds reasonable and authentic to anyone, then it's really hard to predict how far arguments will go in debates between rape and seduction in less unambiguous cases. It seems that everything depends on the point of view (and no less on the wickedness and violence with which you conduct yourself).

This is indeed a simple case of violent coercion that has no justification. A clear case. But it is also not a case of seductive rape, but of secular coercion in the first place. In contrast, the other cases mentioned so far involve both a rapist and a seducer, and they are not so simple. I have a position regarding all the examples raised here, but I do not have a clear and universal criterion and I certainly do not know how to convince readers to agree with me in all these cases. I only hope that I have at least succeeded in showing in my words here that the problem is quite complicated, and perhaps these words will motivate people to try and get to the bottom of the other side's soul and prevent shallow and flat discourse as is customary in our circles. In all these debates, each side is convinced that it is right, of course, and the other is simply talking nonsense. One tells the other that he is an aggressor and the other replies that he is a provocateur. In fact, in many cases both are right: indeed, he is an aggressor (rapist) and his friend is a provocateur (seducer). And yet the question of what conclusions to draw from this depends on our assumptions about the initial rights of the parties. It is not enough to determine that there is provocation or aggression here to reach conclusions. If we put the underlying assumptions on the table, there is at least a chance of having an intelligent and perhaps even constructive discourse about such problems.

[1] Of course, there are also costs to closure. It sometimes leads to difficult actions that are done in secret, and prevents courageous treatment of such problems when they arise. I am not advocating an ultra-Orthodox approach here, not even in this area. But there is certainly room for more balance on the issue of permissiveness. We should not take it for granted and only deal with plugging loopholes so that the entire dam does not collapse. Sometimes it is worth considering bringing down the dam itself.

[2] I later read that the organizers of that corrupt party sent an apology to Muslim students who were unable to attend the party because it was held on some Muslim date. Enlightened and thoughtful liberalism, did we mention that?